4 Ga. App. 477 | Ga. Ct. App. | 1908
This is a suit against the Macon Railway and Light Company for damages on account of personal injuries, alleged to have been caused by the negligence of a motorman of the street-car company in unnecessarily ringing the bell and not stopping the ear when he saw that the mules which the plaintiff was driving to a wagon loaded with wood were thereby frightened. The allegations of the petition, which were proved by the evidence in behalf of the plaintiff, were substantially as follows: The plaintiff was driving a wagon loaded with wood, and had just turned into the street on which the car was approaching, when he saw the
When the case was called for trial, the defendant, through its counsel, made a motion for a continuance, on account of the absence of the motoTman of the car, who had been subpoenaed and had been in attendance on the court when the case was expected to be tried at the previous term. In support of this motion the attorney for the defendant stated, that he had talked with the absent witness and he expected to show by him that he did not ring the bell, and the mules were not frightened, and that the plaintiff by his own negligence pulled his team into the ditch and the wágon
It is clear, from these repeated rulings of the Supreme Court, construing §2322, supra, that there can be no recovery in a case of mutual negligence, unless the jury finds that the preponderance of the blame or fault causing the injury is attributable to the defendant. While the more reasonable interpretation of the excerpt from the charge now under criticism would seem to be that the court intended to instruct the jury that the plaintiff could not recover if his own fault preponderated in causing his injury, yet the language used by the learned judge might be construed to mean that the plaintiff could recover, whatever might have been his own negligence contributing to his injury, if they also found that the negligence of the defendant also contributed thereto. Of course, what we are saying is only applicable where the evidence shows that the plaintiff could not by the exercise of ordinary diligence have avoided the consequences of the defendant’s negligence. Under the facts of the present case, however, the charge objected to, though erroneous for the reasons stated, was harmless. There was no evidence showing any mutual or concurring fault contributing to the plaintiff’s injury. Under the testimony in his behalf the ease was one of negligence on the part of defendant’s, agent, unmixed with any negligence on the part of the plaintiff. The evidence for the defendant, on the other hand, indicated that the injury was caused entirely by the plaintiff’s own negligence, and that the defendant was entirely free- from blame. In other portions of the charge the court fully and accurately charged the issues presented by the evidence of both parties, and the excerpt objected to, although not adjusted to the facts, could not have hurt the defendant. There is no evidence whatever as to mutual fault or blame, but the evidence presents a conflict as to whose fault caused the plaintiff’s injury, and this conflict was settled by the verdict of the jury. Judgment affirmed.